35 N.Y. 9, Ernst v. Hudson River R. Co.

Citation:35 N.Y. 9
Party Name:MARTHA ERNST, Executrix of Henry Ernst, Appellant, v. THE HUDSON RIVER RAILROAD CO., Respondent.
Case Date:March 01, 1866
Court:New York Court of Appeals
 
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35 N.Y. 9

MARTHA ERNST, Executrix of Henry Ernst, Appellant,

v.

THE HUDSON RIVER RAILROAD CO., Respondent.

New York Court of Appeal

March 1, 1866

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COUNSEL

R. A. Parmenter, for the appellant.

J. H. Reynolds, for the respondent.

PORTER, J.

When this case was here on a former occasion, a new trial was granted on the ground that a nonsuit had been refused, upon a state of facts, of the truth of which

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there is now no pretense. That decision is unreported in the regular series; but one of the opinions delivered in this court is contained in another law publication. (24 How. Pr., 97.) In that report, through some misapprehension or over-sight, the head-notes, as well as the preliminary statement of facts, are essentially erroneous. The body of the opinion, however, discloses a very striking difference in the evidence, as then and as now presented, on the vital question, whether the husband of the plaintiff was a negligent and guilty participant with the defendant in the wrong which resulted in his death. We find the difference still more marked on examining the printed cases, upon which the decision of this court was founded.

It seems that the plaintiff was surprised on that trial by proof, which she probably had no reason to expect, but which was not repeated on the last trial, when she was prepared with evidence to meet it. The prevailing opinion assumes--and we are at liberty, and perhaps bound, to suppose that the testimony of Simmons, Butler and Waltemyre, whom the defendant did not call on the last trial, justified the assumption--that Ernst was intoxicated on the occasion of the collision; that he drove so carelessly by the way that he nearly tipped over; that he was cautioned at the time by the person riding with him to drive more carefully; that he was partially deprived of the use of his ordinary faculties; that he knew the stated times for the passage of the trains; that this was, in fact, a regular train, on its stated and customary time; that it was notoriously due at that hour; that Dearstyne's hotel, at which Ernst stopped, was 150 feet east of the track; that he started from there at a rapid rate of speed; that other persons heard the train coming at quite a distance; that four of them, after he started from the tavern, respectively called to him in a loud voice to stop, several times each; that quite a number of persons saw the approach of the train; and that he had an open view of it, nearly all the way from the hotel to the crossing, for a distance of a hundred rods from the highway on which he was riding. (24 How., 102, 108, 110.)

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In the light of the evidence given on the last trial, it is not difficult to infer why testimony like this was not reproduced, when the plaintiff was prepared to meet it. Simmons, one of those witnesses, swore there was a box on the testator's sleigh, and a seat on the box; represented, in substance, that this intoxicated man, who had been running his horses and drinking at every tavern, had his head, as well as his face, bundled up in a big shawl; that he, himself, heard the cars coming, and standing near the track, face to face with Ernst, when the latter was half way down from the tavern, told him to stop for God's sake or he would be killed. It appears that Butler, on that occasion, swore with equal zeal. His version of the matter in substance was, that he stood at the northwest corner of Broadway and Rensselaer streets; that he hallooed from there to Ernst as he was passing, to hold on; that the testator appeared to hear him, but turned his head away, and, in defiance of the warning, drove on to the crossing. Waltemyre, on that trial, went further still, and, in effect, represented Ernst as driving his horses on the track directly in front of the engine, though warned of its approach by the whistle, the bell and the flagman.

The testimony of these three men, then given and now withheld, explains the former decision that, upon such a state of facts, the plaintiff should have been nonsuited. It also explains why that decision was by a divided court. Such testimony, though not met by a point-blank contradiction, was too improbable in its nature, and too inconsistent with the other facts proved, either to obtain credence with the jury, or to commend itself to the full confidence of practiced jurists. It happened that the case, upon the testimony as then given, was heard in this court and the court below, by ten of the judges, only five of whom differed in their conclusions on the question of fact from the jury. It is scarcely to be supposed that they would have hesitated to approve the verdict, if it had been rendered upon the proof presented by the respective parties on the subsequent trial.

It now appears that the prominent facts then relied on to

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inculpate the testator were fictitious. Instead of being a drunkard, stupefied or crazed with liquor, he is proved to have been an orderly, sober and respectable citizen. The pretense that he drank anywhere that morning is abandoned, and his family physician testifies that he never knew him to be intoxicated. Instead of being deprived of the use of his faculties, he is shown to have been a man in the prime of life, of regular habits, with clear vision, and in perfect health. Instead of running his horses by the way, and starting from the tavern with reckless speed, he is shown to have been an experienced and practiced driver; and it is proved that, on this occasion, he started from the hotel on a walk, and continued to drive with moderation, prudence and judgment. The claim that he knew the stated times of the trains is also abandoned. The fact that this was a regular train, on its customary time, is alleged by none, even of the defendant's witnesses, except Gregory the engineer; and he is contradicted by Dearstyne, an intelligent and disinterested witness, who knew the time of the trains, waited for them with his ferry-boat, and observed the fact, at the time, that this was a train not then due. The defendant, knowing the fact to be in issue, neither produced its time-tables, nor confirmed Gregory's statement by the testimony of any of its other employés. The absence of the flagman from his post is strong presumptive evidence that no train was due at that hour. Under such circumstances, no court has a right to assume, as matter of law, that the statement of the inculpated and impeached engineer is true, and that the contradictory testimony of a reliable and disinterested witness is false.

It now appears that, instead of the testator's riding a hundred and fifty feet in full view of the engine, the whole distance from the hotel to the track is less than a hundred and thirteen feet, and that he did not see the engine at all, until it emerged from behind the station-house, when the horses were in the very act of going upon the crossing. It also appears that, instead of his having, from the hotel down, except opposite the station-house. an open view of the

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northern track for a hundred rods, there was but one place in the whole distance where, even if he had been standing up and expecting a train, he could have seen it as far north as the ice-house, which was within five hundred and ninety-four feet of the crossing. The track, instead of being straight, was sharply curved. The view, instead of being open, was obstructed by intervening woods and upland. The natural point of observation, when there was no signal of an approaching train, would be at the corner of Rensselaer street, as he turned his horses round to the north and drove into it from Broadway. The proof is explicit, that from that point the range of vision is but about twenty rods, and it is equally decisive that, when he was at that point, the engine was behind the hill and woodland, at least fifty-seven rods above the crossing. Ernst, as he drove down, was sitting on the bottom of his sleigh, which had no box. This, of course, materially narrowed his range of vision, and made every intermediate fence an additional obstruction to the view.

There is no pretense now that any one east of the store which adjoins the track either saw or heard the train at all, until it reached the crossing. Ten Eyck and Hunter were at the store, within two or three rods of the rails. Both of them were looking north, and both unoccupied; yet neither of them saw or heard the engine until it was within less than two hundred feet of them, the horses of Ernst being then close to the track and in full motion. It was not seen at all by the witnesses Taylor, Traver, Dearstyne and Van Denburgh until just before it reached the crossing; and none of them heard it until then, except the ferryman, who was more familiar with the sound, and who detected it first, while looking in that direction from below on the river side, when the cars were within three hundred feet.

The claim that four men were hallooing to Ernst to stop, when he was not yet half way down, is also now abandoned. But two men hallooed at all, one from the store and one from the station-house, while the team was passing between

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them. If Ernst heard what either of them said, the fact is undisputed that no one else did. The warning was well meant, but it came too late. It was simultaneous with the res gestae; with the rush of the engine, the plunge of the horses, and the ineffectual struggle of the testator to rein them...

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